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Bullcoming v. New Mexico

Supreme Court of the United States (June 23, 2011)

A forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, is "testimonial" for Confrontation Clause purposes. The Confrontation Clause bars the prosecution from offering such reports to prove a fact at trial, where the witness neither personally performed nor observed the test reported in the certification.

The defendant was charged with driving while intoxicated. At trial, the State introduced a laboratory report certifying the defendant's blood alcohol concentration. The defendant's blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division by a forensic analyst who completed, signed and certified the report. At some point prior to the defendant's trial, the analyst was placed on unpaid leave from the laboratory. At trial the State introduced the absent analyst's report, as a business record, through another analyst from the laboratory. The "substitute analyst" was familiar with the testing device used to analyze the defendant's blood and with the testing procedures of the lab, but had not participated in or observed the actual testing of the sample and had not reviewed the analysis.

The defendant was convicted and appealed, arguing that the introduction of the report violated his right to confrontation under the Sixth Amendment. The New Mexico Supreme Court upheld his conviction, ruling that the substitute testimony was adequate to satisfy the confrontation clause because the testing analysts "simply transcribed the result generated by the gas chromatograph machine presenting no interpretation and exercising no independent judgment." The defendant appealed and the Supreme Court of the United States granted certiorari.

A laboratory report indicating a blood alcohol result is testimonial as it is made for the purpose of proving a fact at trial. If an out of court statement is testimonial, it may not be introduced against the defendant at trial unless the witness who made the statement is unavailable and the defendant had a prior opportunity to confront that witness. Crawford v. Washington, 541 U. S. 36, 59 (2004).

In this case, the report indicated more than a result generated by an instrument. The report also indicated that the analyst had received the defendant's blood sample intact and sealed; that the analyst checked to make sure that the forensic report number and the sample number corresponded; that the analyst performed a specific test following a certain protocol; and that the analyst left the report's remarks section blank, thus indicating that no circumstance or condition affected the sample's integrity or the analysis' validity. The Bullcoming Court held that "[t]hese representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination." WestLaw: 2011WL 2472799 at 10.

Surrogate testimony of the kind given in this case could not convey what the testing analyst knew or observed about the events that occurred during testing, nor expose any lapses or fabrications on the part of the testing analyst. Having the testing analyst on the stand could have exposed defects in his proficiency, the care he took in performing his work, and his veracity. In addition, the substitute analyst did not know the reason that the testing analyst had been placed on unpaid leave. If the original analyst had been on the stand, defense counsel could have asked questions that could have exposed the analyst's incompetence, evasiveness, or dishonesty that possibly prompted his removal from the job. "More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because on the whole, the trial is fair." WestLaw: 2011WL 2472799 at 13, citing United States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006).

Because the defendant's Sixth Amendment confrontation rights were violated by the admission of the certificate of analysis through a witness who neither tested the defendant's blood nor observed or reviewed that test, the defendant's conviction was reversed.

Note: In a concurrence, Justice Sotomayor emphasized the limited holding of the case, noting that the substitute analyst had no involvement whatsoever with the testing, was not an expert witness asked to give an independent opinion about testimonial reports not admitted into evidence, there was no suggested alternative purpose for the report, such as medical treatment, and the State sought to admit the first analyst's statements, not just a printout. Thus, "the court's opinion does not address any of these factual scenarios."